Suspended ANC Youth League president Julius Malema's lawyers have likened his latest suspension from the ruling party to a banning order under apartheid and questioned the national disciplinary committee (NDC) jurisdiction to charge him.
The lawyers wrote to the head of the NDC - Deputy Science and Technology Minister Derek Hanekom - telling him that Malema's suspension was a violation of the country's constitution and those of the ANC and the youth league.
In the letter seen by the Sunday Times, Advocate Patric Mtshaulana said the reasons given by the NDC for Malema's suspension were too wide and did not hold water.
"In substance, what the NDC has done is to impose a banning order on Malema prohibiting him from making any statement on any matter pertaining to the ANC ... The utterances of the word 'ANC' would fall foul of the banning order. Even under the apartheid regime, banning orders could be challenged merely on the basis of the wide ambit of their terms," Mtshaulana wrote.
"It is simply unlawful to seek to ban Malema from addressing meetings 'as an invited guest'. Similarly, the condition that he 'may not make any public statement on any matter pertaining to the ANC', even if such matters were in praise of the ANC, is simply a flagrant violation of his constitutional right to freedom of expression," said Mtshaulana.
Malema was handed an "immediate suspension" on Wednesday for calling President Jacob Zuma a "dictator". In an unusual move, the NDC decided to bring charges against Malema rather than wait for a complaint from a member or structures of the party. However, Mtshaulana questioned the NDC's decision to institute disciplinary measures, arguing that its actions were "unlawful and improper".
"The NDC as a body cannot be the complainant, the instituting body and the adjudicating body all at the same time. This offends one of the most basic rules of natural justice [that] 'one cannot be a judge in his own cause or case'. The proposed recusal of certain members of the NDC would not cure this defect. The fact remains that it is the NDC which has charged and it is the NDC which will judge. In any case, the NDC should have revealed the names of those who took the decision."
But in the suspension letter to Malema, Hanekom said the NDC members who took the decision to charge Malema would recuse themselves from the disciplinary process.
The NDC, which is appointed by the ANC national executive committee (NEC), is made up of nine members.
Mtshaulana said Malema's criticism of Zuma did not constitute a case of misconduct but was merely an opinion on "the state of the ANC under the current leadership of president Zuma". "These views may or may not be correct, but they remain nothing more than opinions," wrote Mtshaulana in the letter dated April 4 2012.
The "ban" appears to have failed to silence Malema who attended two church services in Butterworth in the Eastern Cape on Friday. He told congregants at the Last Move Ministries in Cuba Township that his enemies were plotting to kill him. "They have not only turned against us, but they are also planning our death. You have an obligation, bishop, to pray so that what they are planning does not succeed."
Malema said he would challenge any form of injustice against him. But it is not clear whether he will attend the youth league's special NEC meeting at Luthuli House tomorrow.
If he does it would be in violation of his latest suspension.
Hanekom replied to Mtshaulana's letter on Thursday but refused to divulge the contents of his response to the media.
Meanwhile, Zuma attended the ANC provincial conference in Nelspruit, Mpumalanga, on Friday, where he told delegates that the youth league was not an independent organisation.
"This youth league belongs to the ANC. It does not belong to itself. Once you begin to develop ideas that indeed it could be an organisation of itself you have missed the point. Some people forget that some of us who are old come from the youth. You can't tell us about the youth," said Zuma. - Additional reporting by Sibongakonke Shoba